oN e ATC UN OF DS INDUSTRIAL LAW - erccesJings fly imposition of penalties under s.1i9 of the Canciliration. and alleged breaches by the cesrpondenct cf the xdotels and Ferarl Liquor Industry Avarad IS75 - ''oenalty atec' - "additional allovance". Wanciliation and Arbarrariin Ast Tout, r= 118, 12507) Acts Interpretation Ber Laul, 2 LEfl pre.t and Rerali Imluitoy Aver 7475 D.A, NICOL -v- CREST INTERNATIONAL FCLER (BRISBANE! FTV LTD iN THE FEDERAL COURT OF AUSTRALIA ) QUEFENSLAND DISTRICT REGISTRY ) Qld Q7,8,9 of 1983 INDUSTRIAL DIVISION ) | \ I. t 1 I " pote, ' BETWEEN : fo 1 oot ' D.A. NICOL Applicant [ tf, 7 AND: 'CREST INTERNATIONAL HOTEL (BRISBANE) PTY LTD r Respondent Co ORDER JUDGE MAKING ORDER: FITZGEPALD J. "|" DATE. OF ORDER: 21 OCTOBER 1983 | WHERE MADE: BRISBANE THE COURT ORDSRS THAT: Applications ©7, Q8 and Q9 of 1983 are ' dismissed. "a I ony aD st m . a ie} Ay be Ne] co Oa e BETAITEN : SAL Nees Soolicant ANT: CREST TITEPSAT OWA AOLEL .eRissRWE) Pry br Pospondent ERALD J us COTOBER 196? CE. Tre 1259/2) of the has comrencea a "urbe: -f srareedinas against the respondent far the imeasibion ei nenalcies tnger 3 115 of the Act in respect of aliegeq breache: ov rie vesgecndent oF tne Hotels and Petarl no a@lspuce as to Ehe Facts ana 1b 1s common gremnd that che Awara WAZ applicable. The cuestien oir tach case is whether the resocrdenkt waz obliged 7s tay tc various petsons engagea by it as to clause 20/4) Nor 18 there any question sub that the respondent would ~ ta nave Deen ohiiged to ars such paymencs but For clause 21 of che Avard. Fach of the ewplicyees yas 2 weexiy employee employed in the back cf tne heves awl haa a broken wor's aay «1th a spreaa of hours oF 1G or more hovever, sech was also enticled to pe paia and was paid at an unereased rate G7 actordance with clause 20(c) of the Award. Tt 18 the Awa.d in deca2_ Suc-rlause i re es of pay dayable ro emplovees in eilt ntional allowances are w.ayable under the followina sub-cla clause 17 Ter a variety oa qealiaficaktions, a) tr my3 a crm = un litres. Sub-ciaures 20 and 2. eravide (a) romay require any weekly ewplevee to work reason ertame at cvercine rates ani such emoloyes OVEcTL~e® nN acecoraance with such requireren msurs cheat crecly amployses are not aeorived is) retunity te waezk ceasorable 'overtime an enplaye Q fac as is eractivable offer such enployee the SOLTUNLEY to work any overtime that may be vequired meet Flactuations in hts trade or other special circ anc in mireterenrce fo sryvaging casuals TO sunplement 2 io labour Force. All tame wereed in excess oF and/ar outsidea the Ao Nf hows or ots rostered hoves scresor2 Slauget 12 ad thie awacd Siail be overt thali be sald toy allowing cates: (iy lpclueive 'ooues end rent categor 7 Lo cefer to many of the orovisions (2) prescribes the minimur ie er wses Mie or time ana tnree cmarkers fo. che first three hours an. aguble time for ali the time vorked therearrer, fait Bets and midnight Sunaay dau sy ked, (iv) All euplovee 5 rcastered day miparum payment cf Fou aouple time. Pre Tour hate ons sh guplite where the ove > t Che orevious day s duc (vw) frrertime on any dey chali stand alone. (vi) Tr aroan s2 ling or overtime duty that he : ben moaurs rest befere his nexr re a.T1ng time, he smali he allowed ey consecutive heugs rest STLTROUL er pay or shall Fe paid at overtime all tame of duty until he has had nOurS vert. iNeaK-end Panalty Rares (B) or) For asl aonaey tire worked between midnight reiday and misdnoenc Csluraay tire and a nalt sates shail nm wrdanight \UszEe time = a = e Front of se rev l J8 hall be paid, with a miniinur of eLaat hours 3! the rate of double time. (co) Ane em awho is cequired ta veri an Rous outside the hours of a days to Fridays inclusive 1 nouk, of any part et an heu oc 3 outside the said hours with a minz cents for any one gay. An employee ce WAS 1s required to work ail of nis zee the hours of 7 a.m. to 7 p.m. an 2nelusive shail be paid 35 cents pe. } . ray : ou q i] iD Pam te A D i] rs] e ie) M4 m a rv oa] i fo iS fe) ns ' iP) "A J + fe mx ia] o i)>fo" » nm & broken wor dav ghall recer for a soread of heures as pres az follows: Where the spread cf bee go hours 1s under vnder 10 - 16 lu is 10 1/2 Lloi: 11 1/2 12 is 12 1/2 or more - 21 - ATES Except as provi 192 cequired ta ke soma such tire shall act but shall be 5 haan employee s greatest age Clause 15 of tre Aware 15 aF no e been subsequent tat 20(d). ve an additional allowance eriben in sub-clause 12(b) s Rate per day Nui 2 SCcSnts 2 ei.00 a 21.55 $2.00 NOT CUMULATIVE if, where time worked is te thar the ordinary rate to more than one penalty, Feralty snich 1s to the " cresent relevance. There have he yates prescrikea hy clause n Tn2 ordinary wage? ... 843 conpensatren For umieual canditions of . servica "+ Mavusi Accertance Comeany fimitea vy, Federal Co T have imp 2s tetien pimited and Ore of (a is) n wa 90148 ta Hs usly a Pe n P } [os tea irs] mu ul etriment suife p BEE ae erin EE etn iicocenillt, Ain. °, wm tm MMR i The additional payment is expressed as a daily er om» cr 1D Even were if nob etpressec ag a rate, the work which attracts that payment &2 weil as at the ordinary rate, 13 Plainly enough vork whict 15 "pair. for at wore than the ordinary rate". enplovrent vhich attcatte (the adgdirionail payment 18 a ""preken vork day". In my opinion, there 15 nething tn clause 20(d) which supports the tragqmentation of such a were cay Detween "time worked" and time nor worked and the aktributien cf the additional] payment to the ' The payment 15 related ca the "spread af nours' over whier "ime i.e worked, and more w pactrculariy to a tenosLtion of eurleyment ocvatch necessitacr 3c the case. Tre amount cf the cavmert is rsiared to the extent of tne interrupticn. Tocee is re cevanti: basis, omy view, 'pen waich 1t can he sitgestec rhant fme navment 2: not required ca pe sy in) tsTm n oF ub Ty I m2 not in dispute that the proceedings must k= dismissed. Both Counsel referred we to the decision in consequence of 'mich clause 20(d) was aaded to the Award ab a later time than both clause 20(c) and clause 21. However, even aif it ais wermissible to dezive wat was intenied in that vay, ain fact I have received no acsizcance from erthec rhe decision or ct h ww history, aithough I a» satisgtied that neitnes is inctonsis-ent with the conclusion at ~rhich I save arrived That conclusion 1s aon Act 1991) but warnings have beésn qiven concerning the use te which that rrovisi7n way be put (see, 2.9. Hornsby Building Information Centre Foy Etd vw. Svdney Builaing wu-k. 216, 225), and, in cessary "o rely upon the heading The orger rf the Ccurt rs that applications 97, O68 and O° of 1983 he dismissed. | certify that this andthe J preceding pages are a true copy of the reasons for jud-ment herein cf His f4ensur Mr Justice Fitzgerald ct f-Deeesew Associate Dated ©/ cruz ober', 19 FF